Jharkhand High Court
Unknown vs (I) Jailal Mahto on 18 June, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 443 of 2003
2(a) Suresh Prajapati
2(b) Umesh Prajapati
2(c) Gopi Prajapati
2(d) Ashok Prajapati
2(e) Tejan Prajapati
3.Smt. Kaushalaya Devi
4.Manger Ram @ Mangal Prajapati
5.Dhanu Kumhar @ Dhanu Prajapati
6.Parmeshwar Prajapati
7.Balgovind Prajapati
8.Sitaram Prajapati
9.Om Prakash Prajaptati
.... .. ... Appellant(s)
Versus
1(i) Jailal Mahto
1(ii) Tukan Mahto
1(iii) Amrit Mahto
1(iv)Most. Jhamni
1(v)Savitri Devi
2.Barhan Mahto
3.Budhan Mahto
4.Manki Mahto
5(i)Bimla Devi
5(ii)Kamali Devi
5(iii)Radhawa Devi
6(i)Dinu Mahto
6(ii) Baleshwar Mahto
6(iii)Govind Mahto
6(iv)Girija Devi
7. Sitwa Devi
8. Rashi Devi .. ... ...Respondent(s)
...........
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........
For the Appellant (s) : Mr. S. K. Sharma, Advocate
Mr. Prabhat Kr. Sinha, Advocate
For the Respondent(s) : Mr. Rajiv Nandan Prasad, Advocate
......
C.A.V. ON 02.05.2024 PRONOUNCED ON 18.06.2024
Heard, learned counsel for the parties.
1. This Second Appeal is preferred against the judgment and decree passed in Title Appeal No.57 of 1987 by which the judgment and decree passed learned Sub Judge IV, Hazaribagh, in T.S. No.03/1975 /67 of 1987 has been reversed.
2. Parties shall be referred to by their placement in the original suit and shall include the legal representatives who have been substituted at different stages.
3. Appellants are the plaintiffs, who filed the suit for the following reliefs:
a. Declaration of right, title, interest over the suit land fully detailed in Schedule A of the plaint, and also for declaration of title of plaintiff no.1-Meghan Kumhar over the land mentioned in Schedule B. b. Defendants be restrained by permanent injunction from interfering with the peaceful possession of the plaintiffs over the Schedule "A" and "B" land.
c. If dispossessed during pendency of suit, for recovery of possession by evicting the defendants.
CASE OF PLAINTIFF
4. As per the plaintiffs' case, they were descendants of Churaman Kumhar who had three sons namely Panu, Meghan (Plaintiff no.3) and Kunjil.
5. Panu died in the year 1973 leaving behind his widow Kabilashia (plaintiff no.2) and three sons namely Lalo Kumhar, Mangar and Dhanu Kumhar (plaintiff nos.3, 4 and 5). Churaman died 7/8 years ago.
6. Defendants are sons of Dhani Mahto (who is son of Hardo Mahato). Hardo Mahto had three sons Dhani Mahto, Jagan Mahto (D1) and Nunu Mahto (D2). Dhani Mahto died leaving behind his three sons who have been impleaded as Defendant no.3 to 5.
7. The ex-landlord of Village Sail Kalan, Mahant Bhargao Das whose interest was sold in auction in execution of a sale decree and was purchased by Trigunaits who sold it to one Mulji Kanji. The aforesaid Mulji Kanji sold the Milkiat right of Sail Kalan to Smt. Kesar Devi widow of Sri Chhatradhari Prasad, Advocate.
8. In Village Sail Kalan, there was a large tract of Gairmazurua land within Khata Nos.159. Churaman Kumhar, father of plaintiff no.1 and grandfather of plaintiff nos.3-5, father-in-law of plaintiff no.2 reclaimed these lands when Mulji Kanji became the landlord.
9. The rent was assessed in or about the year 1933 and after the said assessment, Meghan Kumhar-plaintiff no.1 separated from his father Churaman Kumhar and separately reclaimed in the same plot, area of 1.32 acres, detailed in Schedule B of the plaint. The area reclaimed by Churaman Kumhar and his sons jointly as detailed in Schedule A of the plaint and the area reclaimed by Meghan Kumhar-plaintiff no.1 is detailed in Schedule B. Rent was also assessed in the year 1935.
10. Several other tenants of village Sail Kalan had also reclaimed portion of Gairmazaruwa land in the same plot no.690.
11. The then land lord, Mulji Kanji filed Rent Suit No.193/38 for the arrears of rent which was disposed of on 05.09.1938 and the suit was dismissed on full satisfaction against several defendants including Churaman Kumhar, who was defendant no.8 in the said rent suit.
12. On vesting of zamindari, return with respect to Schedule A and B land, was 2 filed at the time of vesting by Smt. Kesar Devi wife of Sri Chhatradhari Prasad. Names of raiyats in respect of khata no.159 included the father of the plaintiff no.1 as serial no.5 of the return and also the name of plaintiff no.1 as serial no.9 of the said return in respect of an area of 3.00 acres and 1.32 acres which is detailed in Schedule A and B respectively.
13. In the first rent receipt issued to the plaintiffs and his ancestors there had been a mistake in stating Khata Number of the disputed land which was corrected mentioning 159/1 Khata No.159/6 in advertently Khata No.62/5 and 62/4 of Village Sail Kalan is mentioned.
14. One Hardeo Mahato had also reclaimed the land in same plot no.690 in or about year 1961 and his sons and grandsons threatened the plaintiffs with dispossession from Schedule A land for which proceeding under Section 144 of the Cr.P.C. was initiated. In the show cause filed by them, they gave up possession over Schedule B land and continued asserting possession over Schedule A land.
CASE OF DEFENDANT (S)
15. Defendants claim to be settled occupancy Raiyat of Village Sail Kalan and that they had reclaimed the lands in Gairmazurua Khata No.159 and 62 of the village Sail Kalan. They reclaimed four acres of land in plot no.690 and about five acres in plot no.159 and 12 acres in another Gairmazurua Khata No.62 of the village. After reclaiming the land during the time of Mahant Bhargao Das till the period of Mulji Kanji and their possession was acknowledged and Hukumnama was granted to the settles.
16. On the basis of pleadings of the parties, the following main issues were framed by the learned trial Court.
Issue No.V is the suit barred by adverse possession and limitation. Issue No.VI-have the plaintiff got right, title and interest over the suit land?
17. Learned trial Court decreed the suit by answering both the issues in favour of the plaintiff.
18. The appeal was allowed and judgment and decree passed by the learned trial Court was set aside.
19. The learned trial Court declared the title of the plaintiffs with respect to Schedule A and B land of the plaint on the following grounds:-
Firstly, the defendants had not claimed the title and possession over the schedule lands. Hukumnama was not filed by the plaintiff for the reason that several plots of land were settled in favour of the plaintiffs and defendants by one Hukumnama, which was in possession of Hardayal 3 Mahton who was the ancestor of the defendants, who did not produce the same. Defendants had filed hukumnama of 17 acres of land but withheld for 4 acres of land on the pretext that it had been lost , and therefore adverse inference was liable to be drawn against the Defendants.
Secondly, the learned trial Court considered the amin parcha [Ext. 2 and 2/A] of Khata No. 159/6 in the name Meghan Kumhar for an area of 1.32 acres. Ext 2/A relates to the land of khata no.159/1 plot no.690 for an area of 3 acres of 4 plots. These two amin parchas were issued by the ex- landlord Mulji Kanji. There are rent receipts issued in the name of Meghan Kumhar and Churaman Kumhar, which is Ext.1/h,1/j,1/L to 1/p issued by the ex-landlord. Those rent receipts were in the name of Meghan Kumhar in respect of 1.3 acres of land under Khata no.159 and Churaman Kumhar for Khata no.159 for an area of 3 acres.
Thirdly, Ext. 3 which is return filed by the ex-landlord Mulji Kanji showing the plaintiffs being the raiyat with respect to schedule A and B land and also the rent receipts Ext. 1.
Fourthly, out of these rent receipts Ext-1 to 1/g were issued by the government after vesting and rent receipts from 1/h to 1/p are rent receipts issued by the ex-landlord before vesting. Plea of manipulation of the rent receipts was beyond pleading of the defendants.
Fifthly, Exhibit-4 showed that there was collective rent suit filed by ex- land lord for realisation of rent against the Churaman Kumhar, which goes to show that the possession of Churaman Kumhar over the said land of suit no. 8/1938-39.
Sixthly, Ext. 4/A which is an order passed by the Sub Divisional Magistrate, Hazaribagh, in Suit no. 181 of 1960 between Meghan Kumhar and Damri Mahato. One amin was examined on behalf of the defendant as DW-9 and in the deposition of DW-9, a parcha issued in favour of the plaintiff was not denied.
Seventhly, claim of settlement of four acres of land made by the defendants was unsupported by any documentary evidence of settlement or of rent receipt post vesting.
Eighthly, there was mis-description in parcha and rent receipts, but the boundary was well established as plot nos. was mentioned correctly.
20. The learned first appellate court allowed the appeal, setting aside the decree passed by the learned trial Court on the following grounds:-
Firstly, trial Court ignored Ext H which was judgment passed in G.R Case no.1/62 in which plaintiff no.1 was convicted for the offence of forgery 4 punishable under Section 471 of IPC. Which shows that he was instrumental in forgery or two revenue receipts of khata no.62/11 and were used as rent receipts of khata no.159. Amendment in pleading cannot cure the misdescription in the rent receipts that have been marked as Exts 1/b to 1/g which is issued with respect to Khata no.62/7 of village Sail Kala and not for khata no.159/1.Ext H is the Judgment of conviction of plaintiff no.1 from which it will transpire that rent receipts of Khata no.62/11 were forged and were used as rent receipts of Khata no.159. In this suit also the said rent receipts were used as Ext-1/b to 1/g.
Secondly, Ext. 3 was disbelieved as it did not mention under what Khata no. and plot no. they had got the land reclaimed and settled. Thirdly, in Ext. 4 which is certified copy of register no. 8 of rent suit no. 1938
- 1939 in the name of Churaman Kumhar has been mentioned in serial no. 8 in column no. 2 but name of Meghan Kumhar was not mentioned. However, name of Hardo Mahato, ancestor of defendant(s) has been mentioned in serial no. 7 of column no.2. In Ext. 4, description of land has not been mentioned. Fourthly, description of land was not sufficiently identified and it was noted by the learned trial Court that the boundary given in the plaint did not tally with the boundary given in the Pleader Commissioner's report [Ext. 5]. Fifthly, it was observed by the learned first appellate court that Court should not have drawn adverse inference for non-production of Hukumnama. Sixthly, Ext-2 and 2/a is the amin parcha purported to be in the writing of one Shiv Shevaklal amin, but the name or signature was not reflected on it which made it doubtful. Handwriting in both these documents apparently did no tally. Siv Seklal was examined as DW-9 who proved the parcha as Ext. B. According to PW-10 he was the author of Ext. 2 and 2/a but the said Ext 2 and 2/a were not been confronted to him on behalf of the plaintiffs, to prove it from the author of the document.
Seventhly, Ext. 1 series which are the rent receipts adduced on behalf of the plaintiff (s) by the government as well as ex-landlord had wrong plot numbers which were mentioned as admitted in para 9(a) of the plaint.
21. This appeal is admitted to be heard on the following substantial question of law: Whether the appellate court below without meeting out reasons assigned by court below has reversed the finding which is in teeth of Order 41 Rule 31 CPC or not?
22. It is submitted by the learned counsel on behalf of the appellant that Ext. F to F/5 are the entries of registered-II. This is an admitted document of defendant and several rent receipts are part of it as Ext. 1 and 1/G. 5
23. It is argued that with respect to Ext. H which is the judgment of conviction in GR case no. 1 of 1962, wherein Meghan Kumhar was convicted under Section 471 of the IPC for forgery for using rent receipt in a proceeding under Section 145 Cr.P.C. appertaining to plot No. 690 Khata no. 159/1 which is not related to the present case.
24. It is further argued that learned appellate court has relied upon Pleader Commissioner's report, without his examination which is necessary under Order XXVI Rule 9 CPC.
25. It is further submitted that the boundary as depicted in the Pleader commissioner's report corresponds with the boundary of the suit land.
26. Reliance is placed on Sheodhyan Singh v. Musammat Sanichara Kuer, 1961 SCC OnLine SC 164 wherein it has been held that where there is no doubt as to the identity and there is only misdescription that could be treated as a mere irregularity. Another case on which reliance has been placed on behalf of the respondents is Gossain Das Kundu v. Mrittunjoy Agnan Sardar [(1913) 18 CLJ 541] . In that case the land sold was described by boundaries and area; but the area seems to have been incorrect. It was held to be a case of misdescription of the area and the boundaries were held to prevail. FINDING
27. There are certain cardinal principles of civil adjudication which cannot be lost sight of. Foremost among them is that in a civil case a fact is to be proved by preponderance of probability to determine the superior title of the party in a suit.
28. While determining veracity of an unregistered instrument, where it is the basis of claim of title in any case, events that follow the said instrument assumes significance to ascertain whether the document had been acted upon and the parties got into possession of the land in question. If there are documentary and other evidence of possession in favour of one party, whereas there is none on behalf of the other, then by preponderance of probability the instrument of conveyance of title can be accepted. It will be relevant to refer to the guidelines laid in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 "52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and Judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth".
629. In the present case, the plaintiffs' suit is for declaration of title with respect to Schedule A and B of the land which comprises of an area 3 acres in Plot No. 690, Khata No. 159 and 1.32 acres in the same Khata and Plot Numbers as detailed in Schedule A and B of the plaint respectively.
30. The claim of title is based on the reclamation followed by settlement by the ex-landlord, settled by unregistered Hukumnama. As held by the full bench of Patna High Court in Mt. Ugni Vs. Chowa Mahto (AIR 1968 Pat 302), raiyati interest cannot be created only on the execution of unregistered deed of lease by the landlord. However, if a person claims to have obtained raiyati interest by virtue of an unregistered document and further asserts that he came in actual possession of the same on payment of rent accepted by the landlord, his title to raiyati interest must be recognized, even though the unregistered lease is inadmissible as evidence of title.
31. In the light of above settled position of law, the need for close scrutiny for the evidence of possession in case of title by unregistered Hukumnama assumes critical significance. This becomes necessary to ward off claims being made on manufactured ante-dated document. Unless there is an unimpeachable evidence of possession followed after the said Hukumnama, it cannot be accepted as an evidence of title. The necessary evidence to be looked into in such cases is whether after coming into force of the Bihar Land Reforms Act, 1950 the returns were filed with respect to the said land by the ex-landlord under Rule 7 of the Bihar Land Reforms Rules, 1956. It is also to be looked whether pursuant to the said return, the rent was fixed and the party claiming raiyati interest was accepted as a tenant by the State and rents were accepted from him by issuing rent receipts.
32. In the present case, unregistered Hukumnama by which settlements are claimed to be made, has not been adduced into evidence. Ext. 2 and 2/A which were Amin Parcha purported to be in the writing of one Shiv Sevak Lal Amin has not been proved by the author of it although he was examined as DW 9 on behalf of the defendant(s) nor he was confronted with those documents purported to be in his writing. Learned first appellate Court has also noted that Ext. 1 Series which were the rent receipts adduced on behalf of the plaintiff by the Government as well as ex-landlord had wrong plot numbers which did not correspond to the suit property as detailed in the Schedule of the plaint. This defect cannot be said to be cured by merely bringing an amendment in the plaint by inserting para 9A stating therein that the rent receipts recorded wrong plot numbers. The fact of the matter 7 remains that there is no credible evidence that after vesting, the plaintiffs were accepted as tenant by the State. The other documents which have been adduced into evidence are all of the pre-vesting stage and not after that.
33. Furthermore, as discussed by learned First Appellate Court, plaintiff Meghan Kumhar had been convicted for the offence of committing forgery of rent receipts. In this circumstance, it becomes all the more difficult to accept glaring discrepancy in the number of plots as stated in the rent receipts (Ext. 1 Series) and that of the schedule property.
Under the circumstance, on these sketchy evidences of possession post-vesting, I find that there is no infirmity in the judgment of learned First Appellate Court by which the suit of the plaintiffs has been dismissed. Learned First Appellate Court has assigned sufficient reason(s) while setting aside the judgment and decree passed by learned Trial Court. Second appeal, accordingly, fails.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi.
Dated 18.06.2024.
Sandeep/ pawan 8